# C_2019357EN.01002302.xml

| 21.10.2019 | EN | Official Journal of the European Union | C 357/23 |
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21.10.2019

EN

Official Journal of the European Union

C 357/23

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Request for a preliminary ruling from the Audiencia Provincial de Zaragoza (Spain) lodged on 6 August 2019 — MA v Ibercaja Banco, S.A.

(Case C-600/19)

(2019/C 357/29)

Language of the case: Spanish

Referring court

Audiencia Provincial de Zaragoza

Parties to the main proceedings

Applicant: MA

Defendant: Ibercaja Banco, S.A.

Other party: PO

Questions referred

| (1) | Is national legislation compatible with the principle of effectiveness provided for in Article 6(1) of Council Directive 93/13/EEC, (1) as that directive has been interpreted by the Court of Justice, where it may be inferred from that national legislation that, if a particular unfair term withstood an initial review conducted by a court of its own motion when making an enforcement order [negative review of the validity of the terms’ content], that review prevents the same court from subsequently assessing that term of its own motion where the factual and legal elements existed from the outset, even if that initial review did not express, in the operative part or in the grounds, any considerations on the validity of the terms? |
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(1)

Is national legislation compatible with the principle of effectiveness provided for in Article 6(1) of Council Directive 93/13/EEC, (1) as that directive has been interpreted by the Court of Justice, where it may be inferred from that national legislation that, if a particular unfair term withstood an initial review conducted by a court of its own motion when making an enforcement order [negative review of the validity of the terms’ content], that review prevents the same court from subsequently assessing that term of its own motion where the factual and legal elements existed from the outset, even if that initial review did not express, in the operative part or in the grounds, any considerations on the validity of the terms?

| (2) | Where factual and legal elements exist which determine the unfairness of a term in a consumer contract and the party against whom enforcement is sought fails to rely on that unfairness in the application objecting to enforcement laid down for that purpose by the Law, can that party, following the resolution of that application, make a further preliminary application aimed at determining whether one or more other terms is/are unfair when that party could have relied on those terms at the outset in the ordinary procedural step provided for in the Law? In short, is a time-barring effect created which prevents the consumer from raising again the issue of unfairness of another term in the same enforcement proceedings, and even in subsequent declaratory proceedings? |
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(2)

Where factual and legal elements exist which determine the unfairness of a term in a consumer contract and the party against whom enforcement is sought fails to rely on that unfairness in the application objecting to enforcement laid down for that purpose by the Law, can that party, following the resolution of that application, make a further preliminary application aimed at determining whether one or more other terms is/are unfair when that party could have relied on those terms at the outset in the ordinary procedural step provided for in the Law? In short, is a time-barring effect created which prevents the consumer from raising again the issue of unfairness of another term in the same enforcement proceedings, and even in subsequent declaratory proceedings?

| (3) | If the conclusion that the party is not entitled to make a second or subsequent application objecting to the enforcement proceedings, in order to allege the unfairness of a term which that party could have raised earlier because the necessary factual and legal elements had already been determined, is held to be compatible with Directive 93/13, can this serve as a basis for use as a means whereby the court, having been alerted to the unfairness of that term, is able to exercise its power of review of its own motion? |
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(3)

If the conclusion that the party is not entitled to make a second or subsequent application objecting to the enforcement proceedings, in order to allege the unfairness of a term which that party could have raised earlier because the necessary factual and legal elements had already been determined, is held to be compatible with Directive 93/13, can this serve as a basis for use as a means whereby the court, having been alerted to the unfairness of that term, is able to exercise its power of review of its own motion?

| (4) | Once the sale at auction has been approved and the property awarded, possibly to the same creditor, and the ownership of the property provided as security, already realised, has even been transferred, is it compatible with EU law to apply an interpretation according to which (i) after the proceedings have concluded and the objective of such proceedings has been fulfilled, that is to say, the security has been realised, a debtor may make further applications for a declaration that an unfair term is invalid, entailing an effect on the enforcement proceedings or (ii) after the transfer has been completed, possibly in favour of the same creditor, and entered in the Land Registry, a court may of its own motion carry out a review which results in the entire enforcement proceedings being annulled or ultimately affects the amounts covered by the mortgage, potentially affecting the terms under which the bids were made? |
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(4)

Once the sale at auction has been approved and the property awarded, possibly to the same creditor, and the ownership of the property provided as security, already realised, has even been transferred, is it compatible with EU law to apply an interpretation according to which (i) after the proceedings have concluded and the objective of such proceedings has been fulfilled, that is to say, the security has been realised, a debtor may make further applications for a declaration that an unfair term is invalid, entailing an effect on the enforcement proceedings or (ii) after the transfer has been completed, possibly in favour of the same creditor, and entered in the Land Registry, a court may of its own motion carry out a review which results in the entire enforcement proceedings being annulled or ultimately affects the amounts covered by the mortgage, potentially affecting the terms under which the bids were made?

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(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

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